The Underlying Factors in the Law of Inheritance in Nigeria

The rights of a person over his property, whether real or personal survives his death and devolves on his personal representatives by operation of law. These personal representatives may either be executors or administrators. Executors are appointed by the deceased in his Will to execute the terms of his Will while administrators are appointed by the court to administer the deceased’s estate who died intestate or even testate but without leaving able, willing and ready executors to act. Personal representatives hold the property of the deceased solely for the purpose of administering it for the benefit of the beneficiaries, by collecting the assets, paying the debts and investing what is left.
The Nigerian legal system can best be described as a combination of Nigerian legislation, English law, customary law (including Islamic law) and judicial precedents. Nigerian colonial experience left her with a plural-legal system. In this regard, all the African States formerly under British administration share a common experience with regard to their legal and judicial systems. Nigerian legislation therefore consists of statutes and subsidiary legislation. Statutes consist of Ordinances, Acts, Laws, Decrees and Edicts.
With respect to inheritance, the question of legitimacy and legitimization are principally connected with the status of the successor of the deceased. According to Kasumu and Salacuse (Nigerian Family law 1966), legitimacy is the status acquired by a person who is born in lawful wedlock and such a person is regarded as been legitimate from birth. Since lawful wedlock includes marriage under the Act, as well as customary law, which includes Islamic marriage, any child born during the subsistence of either of these aforementioned marriages is legitimate as was held in Lawal v. Younan [1961] 1 All NLR 254. Also, if the child is born within 280 days after his parents have obtained a decree absolute, the presumption of legitimacy will still apply to the child. Under Islamic law, a child is presumed to be legitimate once he is conceived during subsistence of the marriage. It is immaterial whether the child is born after the marriage has been dissolved. In Nigeria, the concept of legitimacy is very important because of the social stigma that is associated with illegitimacy. At common law as was seen in the case of Galloway v. Galloway (1965) A.C. 229-311, an illegitimate child had no right of inheritance whatsoever with regard to his parent. He is described as filius nullius. The illegitimate child was a stranger in law not only to his father but also to his mother and all other relatives. He thus, had no legal right to succeed to their property, to receive maintenance “or other benefits deriving from the status of parent and child.” Also, an illegitimate child has no right to participate in the intestacies of either of his parents. Likewise, neither of his parent had a right to inherit on the intestacy of the illegitimate child. He also had no right to take on the intestacy of a grandparent or brother or sister (whether legitimate or not) and vice versa.
The influence of received English law on customary law is very prominent in the area of personal laws (marriage and inheritance). Laws governing the marriage relationship in Nigeria tend to impact dramatically on women’s legal position and status in many respects including domicile, property rights and legal competence. Invariably, a woman’s right to property depends on the type of marriage she contracted. There are two types that are recognised under the law: statutory marriages and customary marriages, which include marriages under Islamic law. Therefore, any discourse on women’s inheritance rights in Nigeria must be done in the light of diversity of the legal system.
By reason of the pluralistic nature of the Nigerian legal system, different systems of law apply to determine who succeed and inherit property of deceased persons. In determining which systems of law is applicable to a particular deceased, it is necessary to determine whether he died testate or intestate, that is having written a Will in his life time or not. If he wrote a Will in his life time, then the terms of his testamentary instrument automatically displace any existing rules of inheritance, whether under any Customary law, Islamic law or marriage under English law. It is only when he died intestate that the questions; was he a Moslem, was he married under the statute or what was his customary law would arise.
Nigerian law on testate inheritance/succession includes: The Wills Amendment Act, 1937 and the Wills Amendment Act, 1852, regarded as statutes of general application, which were in force in England on January 1, 1900 and the Wills (Soldiers and Sailors) Act, 1918 which deals with the formal validity of Wills. In some states of the federation of Nigeria, the 1958 Wills Law, CAP 133, Laws of Western Nigeria applies. These states include Oyo, Ogun, Ondo, Osun, Ekiti, Edo and Delta. This law is essentially a re-enactment of the above mentioned laws on Wills. However, section 3(1) of the Wills Law, 1958 contains a provision not contained in the other Laws mentioned above to the effect that: “The real or personal estate which cannot be disposed by the applicable customary law, cannot be disposed by will”. Testate inheritance in some states in Eastern Nigeria is governed by the Succession Law Edict, 1987. The provisions of part 4 of the 1987 Edict are similar to those in the Wills Act, 1832 and Wills Law, 1958. It is important to note that these laws apply in respect of the spouses of a statutory marriage and their children. No disability is placed on widows with regard to inheritance under a testamentary disposition. They are not treated differently from other beneficiaries with regard to their general right of inheritance as their counterparts in England. The provisions of these laws, however, do not extend to widows who contracted customary law marriage which is a marriage governed by customary law which law is a reflection of the popular consciousness of the people who evolved it.
Legitimization is the process by which a child who has not been born legitimate acquires legitimate status. In Nigeria, legitimization can be achieved either by the subsequent statutory marriage of the parent of the illegitimate child or through the process of acknowledgement under customary law. Legitimacy by subsequent marriage was first made possible under the provisions of the Legitimacy Act 1929 which applied throughout the whole country at that time. Under the aforementioned statute, where the parents of an illegitimate child marry after the birth of the child, the child becomes legitimate from the date of the marriage. But if the marriage took place before the date the legislation that is, Ordinance came into effect, then the date of legitimization, will be the date the Act came into effect. The legal effect of legitimization is that the legitimated child acquires the same status with children born in lawful wedlock. He can effectively participate in the administration of the estate of his parents and also be entitled to inheritance. However, when an illegitimate person died after the commencement of the Act, and before the marriage of his parents, his spouse, children and remoter issue living at the date of the marriage of his parent will inherit property and take any interest as if the person had been legitimized before his death.
On the other hand, under customary law, a child though born out of wedlock can be legitimized by acts of acknowledgement by his putative father. The legal effect of acknowledgement was aptly described by Cole, J in Taylor v. Taylor (1960) L.L.R. 286, when he held that “the acknowledgement of paternity by the father ipso facto legitimizes the children and there could not for the purpose of succession be different degrees of legitimacy”.
Testate succession consists primarily of wills. In Nigeria, there is no uniformity of applicable laws relating to wills. Consequently, among the states that were created out of the former western region, the applicable law is the Wills Law. By virtue of the provisions of the Lagos State (Applicable Laws) Edict of 1972, Lagos State adopted the Western Nigerian Law. On the other hand, the rest of the country consisting of the states from the Northern and the Eastern part, still apply the English Wills Act 1837 and the Wills Amendment Act 1852.
A critical analysis of the provisions of the Wills Law shows that the legislation basically re-enacted the provisions of the Wills Act 1837 and the Wills Amendment Act 1852 together with the provisions of the Wills (Soldiers and Sailors) Act 1918, but with inclusion of some provisions that took into consideration the prevailing customary laws and principles that regulate succession under customary law in the affected states. Also, Section 15 of the Wills Law provides that every Will made by a man or woman shall be revoked by his/her subsequent marriage. However, the Wills Law exempts a marriage in accordance with customary law from having this effect.
On the other hand, intestate succession basically involves the applications of three systems of laws, like the position with legitimacy and legitimization. These are (a) the common law (b) the Administration of Estate Laws of the various States and (c) customary law. The crucial question is how does one determine the applicable laws to be applied in cases of intestates’ succession non-customary? According to Prof. Itse Sagay (SAN) “the factor, which determines which system is to apply in every case, is the type of marriage contracted by the intestate person. In the case of Muslims, the religion practised by the deceased is also relevant”. Commenting further, the learned Professor stated the principles of law as follows: Thus, if a person contracts a Christian (monogamous) marriage outside Nigeria, the common law of England governs the distribution of his estate. If he contracts a statutory (Act) marriage in Nigeria, then if he dies domiciled in Lagos or any of the states comprising the old Western Region, then the Administration of Estate Law will govern. If he contracts a statutory marriage, but dies domiciled in any of the states comprising the former Northern or Eastern Regions, which are yet to enact their own law on non-customary succession, then the common law will also govern the distribution of his estate. Finally if the intestate person was an indigenous Nigerian and he did not contract a Christian or Act marriage, or even if he did, and no issue or spouse of such a marriage survived him, his estate will be distributed in accordance with the relevant customary law. If the intestate was a Muslim, then Islamic law would govern.
It is imperative to bear in mind that the above stated position of the law is subject to many qualifications. For instance, in cases involving the distribution of immovable properties of intestate persons, the applicable law is the lex situs, in other words, the law of the place where the land is situated. Therefore, the above generalisation is only correct with respect to movables. Also, where a person who is subject to customary law or Islamic law dies intestate, it is his personal law that will apply to the distribution of his immovable property and not the lex situs

- The Lawyer Chronicle



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